Sexual Assault Conviction Quashed

The complainant at the time of the alleged assault was six years old. She was playing with a friend, D, in D’s house along with her older sister.

The accused, D’s father, had been drinking very heavily watching television in the bedroom. He eventually came downstairs. The children were having difficulty with a game on an iPad and, as D’s mother was busy cooking, the accused was asked to fix the iPad. He sat beside S (the complainant) and D while dealing with the iPad.

During this time of sitting next to S, it was alleged that the accused rubbed her leg. He then allegedly put his hand over her underwear and rubbed her privates for a few minutes. S reported this to her mother the next day.

Her mother reported the incident to the gardai, and they investigated the complaint. The accused denied the allegations in a voluntary interview and accounted for his movements.

In a formal recorded interview with the gardai in December 2016, the claimant gave details of the alleged assault.

In October 2019 the case came to court, but the case collapsed because a meeting attended by two specialists at the complainant’s home was not disclosed to the court. A second trial was abandoned due to Covid.

When the case came up a third time, the charge was a single count of sexual assault, and the accused was convicted. The accused appealed. He argued against the admissibility of the complainant’s video-recorded evidence and the passage of time. The complainant was 11 years old at the time of the trial and said she could not remember the incident or the surrounding circumstances. She could only recall what was on the video recording.

The Court of Appeal noted that if a child was incapable of distinguishing between what was said on video and the underlying events, then the competency of the child to give evidence was doubtful and they reviewed case law on the subject.

In dealing with the present case, the court held that it was not surprising that the complainant did not remember a single, brief incident from over four years previously. However, her evidence showed that her memory was “significantly impaired” and that she was relying on the video recording. On this basis the Court of Appeal found the conviction unsafe and quashed the conviction.

The People (DPP) v. M.T.  IECA 65.